ATTORNEY-CLIENT PRIVILEGE for European Patent Attorneys in Denmark

The purpose of Attorney-Client Privilege is to prevent correspondence between advisor and client being presented as evidence in legal proceedings. Attorney-Client Privilege ensures confidentiality between the parties where the client will be able to inform the advisor completely and truthfully and the advisor will be able to advise and represent effectively.

At present, witness testimony in Denmark cannot be required of priests of any religious community, doctors, defense attorneys, mediators and lawyers.

In February 2018 the Danish Attorney General presented a law draft for changing the law to include Patent Attorneys registered as European Patent Attorneys to this list, and thereby having EPA’s and persons working under instructions of EPA’s be exempt of testifying in a legal proceeding concerning advising etc.

Should the draft be enacted, it is expected to become effective from 1 July 2018.

At present patent attorneys in Denmark do have an obligation to testify in legal procedures – in other words, patent attorneys are obligated to provide all information having been communicated between a client and the patent attorney. Such information could for example include considerations on whether a client’s product infringes a product of another company’s patent and other confidential information.

The obligation to provide confidential information during legal proceedings has proven to be problematic, especially in countries where you have a duty to present all relevant subject-matter, as e.g. in the USA and in England.

In the USA patent attorneys are exempt of the duty to testify by the so-called ”attorney-client privilege” which is of great advantage to the clients, as the client thereby may withhold confidential information from their competitors.

The purpose of the law draft is to equate Danish patent attorneys and their clients when operating abroad, with patent attorneys in other countries, for example in the US market, ensuring equality in this area.